- (1.) THIS appeal has been directed against the judgment dated December 21, 1971 of the learned Sessions Judge, Udaipur where by he convicted the accused appellant under Sec. 302 IPC and sentenced him to imprisonment for life.
(2.) TERSELY put and shorn of all unnecessary details the prosecution case as disclosed at the trial is that the accused-appellant Walia is the cousin of Devla (Since deceased ). On March 29, 1971 Devla (deceased) took his goats and she-goats to the nearby forest and hillocks for grazing. The accused appellant went to the forest for collecting gum. He happened to meet Devla (deceased) and asked Devla to bring the she-goats down the hill, but Devla (deceased) did not pay any heed to his advice. He got infuriated and inflicted two blows with a stick on the person of Devla (deceased) and inflicted one blow with a "suiya" Ex 1 which in fact is a screw drive. This blow was inflicted in the scapular region causing a wound of 1/2", 2-1/2" deep as a result of which Devla (deceased) fell down. He asked Hakriya (PW 3) to fetch his father who came with Mst. Khemani (PW 4), sister of Devla (deceased ). The father of the accused Walia, Panchiya (PW 2) sent Mst. Khemani (PW 4) to the village to inform the villagers and collect them on the scene of occurrence, but for a pretty long time none of them appeared on the scene of occurrence, and as such the accused went to the village and informed the villagers that Devla (deceased) had fallen down from a tree and his father wanted them to be at the place of occurrence. The ocular information of this occurrence was lodged at the Police Station, Salumber by PW 1 Kalia, in which it was mentioned that Devla fell down from a tree and succumbed to injuries. It was also mentioned therein that the informant was giving information about the cause of injury on the basis of information received from Mst. Khemani (PW 4), sister of the deceased Devla. PW 7 Bashir Mohammed, Head Constable reached the spot and prepared the inquest memo Ex P. 3. PW 10 Madanlal, Station House Officer and Investigating Officer of this case came at the Police Station on March 30. 1971. The autopsy on the dead body was performed by PW 8 Dr. Suresh Ohri. The postmortem report is Ex. P. 1. The accused was arrested on April 1, 1971 vide arrest memo Ex. P. 9. The accused after his arrest expressed his desire to get the weapon of offence discovered from the place of its concealment. The information memo is Ex. P. 10. In consequence of the information given by the accused and on the pointing out of the accused, Ex 1 "suiya" screw driver, was got recovered. It was found to be stained with blood, and as such the Investigating Officer seized and sealed the same on the spot. The seizure memo is Ex. P. 8. Ex. 1 was sent to the Chemical Examiner and the Serologist and both of them found it to be stained with human blood. The report of the Chemical Examiner is Ex. P. 14 and the report of the Serologist is Ex P 15. On April 3, 1971 the accused was sent to the Judicial Lock up and on April 5, 1971 he was produced before the Sub Divisional Magistrate, Salumber for recording his confessional statement The learned Magistrate after giving a warning and allowing some time to the accused for consideration about the advisability of making a confessional statement ment, recorded the confessional statement given by the accused. The confessional statement is Ex. P. 13. The Police after usual investigation submitted a challan against the accused appellant under S. 302 IPC in the Court of Munsiff- Magistrate, Salumber. The accused retracted from the confession before the learned Magistrate vide Ex. P. lb. The learned Magistrate after taking proceedings under S. 207 A Cr. P. C. committed the accused to the Court of Sessions to stand his trial under Section 302 I. P. C. The accused pleaded not guilty to the charge, and the prosecution in support of their case examined ten witnessnes out of whom PW 1 Kalia is the author of the first information report, PW 2 Panchiya, PW 3 Hakriya and PW 4 Mst Khemani were allowed to be cross examined by the prosecution as they did not support the prosecution case. PW 5 Jabar Khan was examined to prove the recovery of the blood stained "suiya" Ex. 1 PW 8 Dr. Suresh Ohri who performed the autopsy on the dead body of Devla (deceased) was examined to prove the injuries sustained by Devla (deceased) and the post-mortem report Ex P. 1. PW 10 Madanlal is the Investigating Officer of this case. The accused in his statement recorded under S. 342 Cr. P. C. denied his complicity in the crime. As regards the confessional statement made by him he stated that it was made under the police pressure. He examined DW-1 Mst. Rodki in support of his plea. The learned Sessions Judge held that the recovery of blood stained "suiya" Ex. 1 itself was sufficient to hold the accused responsible for the injury and placing reliance on the confessional statement made by the accused-appellant, he found the accused guilty beyond reasonable doubt and convicted him under S. 302 IPC, and sentenced him as mentioned above. Hence this appeal. Mr. Bhandari appearing as Amicus Curiae on behalf of the accused-appellant has challenged the verdict of conviction against the accused-appellant. His contention is that the confession Ex. P. 16 is neither voluntary nor true. He has further urged that the recovery of Ex. I "suiya" at the instance of the accused-appellant has also not been proved beyond reasonable doubt. The learned Additional Advocate. General appearing on behalf of the State has supported the judgment of the trial Court. The learned counsel appearing on behalf of the accused-appellant has not contested and rightly so, in our opinion, that Devla (deceased) died of the injuries sustained by him on March 29, 1971. Dr. Suresh Ohri (PW 8) who performed the autopsy on the dead body of Devla found the following external injuries: - 1. Lacerated punctured wound 1/2" diameter on the left scapula region, about 2-1/2" deep. 2. There was an abrasion on the left leg posteriorly in lower half. He further opined that the injury to the left pleurae, pericardium and heart were corresponding to external injury No. 1, and the death was due to external injury No 1 on the back which went deep to the heart posteriorly left side. In the opinion of the doctor the injury was caused by hard blunt weapon, and the injury was sufficient in the ordinary course of nature to cause death. There is no eye-witness in this case, and the entire case is based on the circumstantial evidence. It is a well settled position of law that in a case of circumstan-tial evidence the circumstances proved by the prosecution must be explicable to only one hypothesis, that is, the guilt of the accused and to no other hypothesis. The circumstances relied upon in this case are the retracted confessional statement of the accused-appellant Walia Ex. P. 16, made before the Sub-Divisional Magistrate, Salumber, discovery of Ex. 1 "suiya" at the instance of the accused-appellant in consequence of the information given by him which was later on found to be stained with human blood by the Chemical Examiner and the Serologist. In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage, nevertheless the courts usually require some corroboration to the confession before convicting the accused person on such a statement. What amount of corroboration would be necessary in such a case would also be a question of fact to be determined in the light of he circumstances of each case Before acting upon a retracted confessional statement of the accused the court is required to be satisfied that the confession, is voluntary and also that it is true. For the purpose of establishing its truth, it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case In our opinion, there are certain glaring circumstances in the confessional statement which can not be shown to be true The accused in his statement recorded under S. 164 Cr. P. C. stated that on March 29, 1971 he went to collect gum on the hillocks in the forest Devla (deceased) son of Narayan met him there. The accused took his axe and sharpened the bamboo sticks which he had with him. At that time the goats and she-goats of Devla (deceased) had gone up the hillocks, as such he asked him to bring them back, but Devla (deceased) refused to accept his advice on which the accused called him names. Devla (deceased) threw stone at him. Thereafter the accused gave him two blows with a stick and inflicted an injury in the scapular region of Devla (deceased) with Ex. 1 "suiya" by thrusting it into his bark which went 4 fingers deep. Devla (deceased) started bleeding, and he fell down. The brother of the accused, Hakriya (PW 3) was standing at a little distance at the relevant time and so he called him and asked him to fetch his father Mst. Khemani (PW-4), sister of Devla (deceased) and the father of the accused came on the scene of occurrence, and thereafter his father sent Mst. Khemani (PW 4) to bring the villagers but as the villagers did not arrive, he himself went to the village and told them that his cousin Devla had fallen down from a tree and they were wanted by his father. He further stated that owing to fear he had stated to the villagers that Devla (deceased) had fallen down. After two hours of the occurence Devla (deceased) succumbed to the injuries. The accused went on to state that be did not know that by causing this injury he will cause the death of Devla. A close reading of the above mentioned confessional statement with the statement of PW 8 Dr. Suresh Ohri clearly reveals that the confessional statement made by the accused cannot be said to be true. PW 8 Dr. Suresh Ohri has categorically stated that the injury sustained by Devla (deceased) in the scapular region was caused by a hard blunt weapon. He further sated that this injury could not have been caused by "suiya" Ex. 1 shown to him in the court. The point of "suiya" was sharp and it could not have caused a lacerated wound. Besides this the doctor did not find the alleged two injuries on the person of the deceased Devla which are said to have been caused by the accused with a stick. The apparent contradiction in the statement of the doctor and the confessional statement made by the accused creates a great suspicion about the truthfulness of the prosecution story narrated by the accused in his statement recorded under S. 164 Cr. P. C. PW 8 Dr. Suresh Ohri under cross-examination has stated that if a man falls from a tree on a stump of a tree it may cause him injury No. 1, if the stump is hard. The statement of the doctor instead of supporting the prosecution case disclosed at the trial, rather, supports the story given in the first information report, which is the first version of the prosecution and it supports the statement of the accused made under S. 342 Cr. P. C. For the above mentioned reasons the confessional statement Ex. P. 16 cannot be held to be true. Then we have the evidence of blood-stained "suiya" Ex. 1. PW. 8 Dr. Suresh Ohri has stated that the injury No. 1 which was the cause of the death of Devla (deceased) could not have been caused by "suiya" Ex. 1 In face of the categorical statement of the doctor it cannot be said beyond reasonable doubt that the discovery of "suiya" Ex 1 connected the accused with the crime.
(3.) CONSIDERING as a whole the prosecution story may be true but the requirement of the law is that it must be true. There is inevitable a long distance to travel between the words 'may be true" and "must be true" and whole of this distance must be covered by legal, reliable and unimpeachable evidence which we do not find in this case. In the result, the appeal preferred by the accused-appellant Walia is allowed. The order of conviction and sentence passed against the accused-appellant Walia is set aside and he is acquitted. He shall be released, forthwith, if not required in any other case. .;